If you’re more than 60 years old and divorcing, collaboration or mediation can be your best hope of preserving your family’s finances.

Introduction

Much has been written about the fact that divorces amongst older couples – sometimes referred to as “grey divorces” – are steadily increasing. If you are older and considering a separation, this article will serve as a guide for how you can prepare yourself for this destabilizing event.

In the literature I consulted while researching this subject, authors all point to three important tips: collaborate, cooperate, and work together. At age 60+, people have reached, or are close to reaching, the peak in their earning capacity. They may be past the time when they can easily make up for the substantial financial set back of a separation and it may be harder to qualify for a mortgage. Separating couples need to apply intelligence and collaboration when they work together if they want to preserve what they have and minimize spending on lawyers and other professionals.

Emotional Implications

To help you work collaboratively with a former spouse and minimize the legal fees, you need to first work through your own feelings about your life and the separation. It is no longer taboo to get help through a personal development course, a personal coach, a therapist, a support group, or similar healing services. In fact, the opposite is now the reality: you may be perceived as the weak one if you don’t access such services.

Anger and resentment towards your former spouse likely occupy a large part of your thoughts. The danger is that people do not know how to differentiate between their anger towards their spouse and the legal issues that have to be decided. They end up unconsciously giving instructions to their lawyers from a place of anger. The legal process then becomes aggressive, adversarial, and unnecessarily costly. This is the most pervasive problem people face during the divorce process.

Further, you may not have the skills to handle strong emotions you may experience – such as guilt, anger, or sadness arising from how your children or family members react to the separation. It won’t help you to negotiate while you are consumed with these sentiments.

During a lengthy marriage, you will also have created several counterproductive ways of dealing with one another that will make it difficult to work constructively with your former spouse during the legal process.

Finally, you likely lack the skills to communicate your opinion in a manner that your former spouse can calmly accept and understand. Instead, you’ll probably push each other’s buttons when you discuss what you want to achieve in the divorce.

Taking time to work on yourself – to become present to and to address your negative feelings towards your spouse, your marriage, or other aspects of your life – will ensure that you don’t bring your anger and negativity to the negotiation table.

Poor communication and unresolved emotions are issues in almost all separations – be they grey, blond, black, or brunette. These are crucial issues that, if addressed properly, can make a world of difference to you and your family.

Financial Implications

In addition to taking care of your emotional well-being, you also need to become familiar with your financial situation. If you were not the spouse who regularly handled the family’s finances, you should sit down with a trusted financial advisor to acquire a good understanding of your financial situation before you start to negotiate your legal issues.

You need to know the sources of income that are available both now and after retirement, what assets and debts your family has at this time, and what are the big expenditures that will surface in the future –such as children’s university costs, weddings, long-term care, caring for elderly parents, etc.

You need to understand which healthcare benefits exist now, and which will be available after a divorce and at what cost. Several health plans do not permit a former spouse to remain a beneficiary after a divorce.

Find out what life insurance is in place on your and your former spouse’s life. If life insurance is needed but the spouse does not qualify because of health reasons, find what other means there are to secure a financial obligation.

A Will remains valid throughout a separation but becomes null and void after a divorce. You may need to re-think your Will and also update your Powers of Attorney for your personal and financial care.

In most couples, one person is more financially savvy than the other. Not to worry. The legal system is designed to ensure that both spouses receive the financial information they need to help them make decisions about their legal separation. Whether your separation will take place using collaborative law, mediation, other forms of lawyer-assisted negotiation, just as it is the case in the court system, you are obligated to disclose all of your financial affairs and entitled to receive all of your former spouse’s financial information. Your lawyer or financial professional will assist you in understanding what information you need and what needs to be provided to the other side.

Once you have the financial information, you can work with your lawyer and a financial professional to develop a financial picture for your future. Financial professionals provide invaluable assistance in working with you to understand your budget and seeing how that will be achieved before and after retirement using all income streams available now and after retirement, your assets, retirement assets, pension plans, inheritances, and if applicable, the financial support of your spouse.

Don’t fall into the trap of formulating a rigid position for your legal separation before all of this work has been completed. I had a case where the former stay-at-home wife, aged 70, had built up so much anger and resentment towards her husband that she could not wait to finally get her “payback” through spousal support. At the time of separation, the retired husband was receiving fixed income from a work pension and modest Canada Pension Plan benefits. The problem was that the wife had recently received a sizeable inheritance, which put her standard of living substantially above that of the husband. It took some time for the wife to come to terms with the fact that even though she had an entitlement to spousal support to compensate her for the sacrifices she made, she now found herself in a much more favorable financial situation than her husband, foreseeably for the rest of their lives, and she would not be receiving any spousal support.

In that case, the wife’s pre-conceived ideas about what she was entitled to resulted in her spending much more in legal fees because her lawyer needed to take extra time to explain the situation and bringing her to a place of understanding and acceptance.

When couples work together to find intelligent ways of sharing their assets and to make sure that each has what they need for their future life, they inevitably find creative solutions that both can live with – without needlessly depleting life-savings on professional fees.

Legal process, lawyers and other professionals

Separating couples have several choices of legal processes to complete the legal separation. They are: collaborative practice, mediation, traditional lawyer-assisted negotiation, arbitration, and court. Even though both collaborative law and traditional lawyer-assisted negotiation may appear similar because they both involve negotiating with the assistance of lawyers, only the collaborative system is designed to use people-friendly negotiation techniques known to make the negotiation process easier for the participants. Most separations should be able to be completed without accessing the more adversarial court system, which are means of last resort.

I favor collaborative practice and mediation because of the quality of results these systems consistently deliver. You should take the time to read up on these systems and develop your own thinking about them before going to see a lawyer. This is because if the lawyer you go to see does not practice collaborative law or mediation, he or she may dissuade you from accessing these services.

In addition to lawyers, you may benefit from the assistance of other professionals, such as financial planners, financial divorce specialists, accountants, house and business valuators, and mortgage brokers. Your lawyer will act as the quarter-back and will help you decide what other professionals could enhance your negotiating team.

Conclusion

There are three things separating people should implement to minimize the trauma of a separation:

take care of your own emotional situation,

have a clear understanding of your and your former spouse’s financial needs, and

work with one another, not against each other.

The rest – meaning your work with lawyers and other experts, getting through the actual physical separation, dealing with your children, and achieving a fair financial settlement – will fall into place. Be the leader of your life and demand that your legal team helps you work together to preserve your family’s wealth through the divorce process.

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Nathalie Boutet is a Canadian family lawyer and mediator. She is also a Deputy Judge in Small Claims Court, and she regularly provides comments to the media on legal matters. www.boutetfamilylaw.com

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